*1 WOLFE v. VILLINES (2006)] [169 WOLFE, VILLINES, KENNETH W. v. ALLENE CURRIE Plаintiff MILDRED CURRIE JEFFRIES, CURRIE, JAMES WILLIAM INEZ CURRIE CORBETT and OZZIE M. CURRIE,
No. COA04-467 (Filed April 2005) 1. Vendor and sufficiency Purchaser— land descrip- sale — ambiguity tion —latent legal description in a agreement land sale latently ambiguous, and the trial court granting erred sum-
mary judgment plaintiff for where there was an issue of material precise parcel fact as to the conveyed.
2. Vendor and Purchaser— land descrip- sale —insufficient
tion —reformation—issue of fact
The trial court reforming erred agreement a land sale through the surveys selection one of three drawn agree- from the general description ment’s improvements discovery where the of unknown
on the created a of fact. Such equity by actions in the trial court at stage permissible are not when there aré issues of fact.
3. Vendor Purchaser— land completed sale — late —time not of essence
A agreement land sale was not vitiated the failure to com- plete survey required within the time where time was not of the essence in the contract. There was plaintiff no evidence that delayed completion or tarried in contract, and the trial properly court delay found that the was not unreasonable. Judge dissenting. Tyson Appeal by defendants from an order entered 11 December 2003
' by Judge Hudson, Orlando F. County Superior Jr. in Person Court. Heard in Appeals the Court of 17 November 2004.
Hatch, Bunn, L.L.P., Little & by David H. Permar and Martin, T. plaintiff-appellee. Elizabeth Ramsey, Ramsey Long, by & Ramsey, James E. for defendant- appellants. APPEALS IN THE COURT OF
HUNTER,Judge. Currie, Jefferies, William Inez Villines, Mildred James Aliene appeal from an order Corbett, (“defendants”) and Ozie M. Currie summary partial judgment to granting 11 December entered performance for (“plaintiff’) W. in an action Kenneth Wolfe error, assignments raise two agreement. a land sale fact as to: were issues of material contending there description property agreement in the land sale the of the whether satisfy frauds, whether the the statute of was sufficient to plaintiffs due failure to com- agreement was terminated land sale requirements prior closing to the date. As we plete agreement’s the description of the of fact as to the find there was a material issue summary property, judgment. we the reverse 2001, plaintiff and defendants entered into an On 6 December plot belonging to (“Offer”) and Contract a of land Offer to Purchase adjacent plaintiff’s property. The Offer that was defendants - plot purchased as “+ or 25ac to be determined described the Property, by survey propеrty behind Mr. Wolfe’s to run to the for portion property the listed in field[,]” and stated that it was first County. specify map 21, 23, in Person The Offer did not who tax Lot responsible survey, provide but did that pur- obtaining was buyer that the pay would for the cost. The Offer stated $2,200.00 per price property was acre and that the chase for the January 2002, place before 31 and was closing should take on or parties. all signed survey hired surveyor, (“Hamlett”)
A Neil Hamlett by Tommy for both (“Bowes”), agent Bowes the real estate plot parties. proposed on Hamlett discovered that a house existed portion tо cut out the of the and was instructed Bowes surveyed containing the house from the land. Due to inclement complete March weather, Hamlett did not return to until time to 2002.He was informed defendants at that not survey, closing expired. reported had Hamlett as the time for surveyed area, possible given three tracts could be in the of 15.9 acres, acres, acres, respectively. 16.9 or 20.8 complaint specific performance seeking
Plaintiff filed a July 2003, repudiated that defendants had alleging contract on 9 surveyed. by refusing allow the land to be Defendants coun- Offer that the Offer wаs unenforceable as it violated the statute terclaimed required survey completed closing. of frauds and the was not before summary judgment. Both moved for On 11 December par- denying the trial court entered an order defendants’ motion and tially plaintiffs spe- granting judgment, ordering motion for appeal cific of the contract. Defendants from this order.
I. We first address whether the from the trial court’s 11 partial summary timely. December 2003 order entitled is Ordinarily, partial summary judgment, because it does not com- pletely dispose case, interlocutory, and cannot be immedi- ately aрpealed. Liggett Group Sunas, 113N.C. however, fully Here the trial court’s order dis-
posed by ordering of the case of the land con- tract, jurisdiction only good and retained in the event that title to the conveyed. in Indeed, plaintiff, could not be appellee case, apparent in this in *4 by might the land be identi- nothing
and refers to extrinsic which Stokes, certainty.” v. 311 S.E.2d fied with House description latently if ambiguous a is “it However by itself, identify land, something insufficient, to the but refers to might made.” Id. at external which identification be at 674. require- Early, inclusion a
In Kidd v. the Court found that the of parcel, in survey precise the boundaries of a а ment of a to determine portion larger tract, a saved purchase for of a of land from contract 356, 222 description patent ambiguity. Kidd, 289 N.C. at the from required to fur- Although option the in Kidd the seller S.E.2d at 402. cases from a number of survey, nish the the Court Kidd relied on survey. buyer jurisdictions permitted also the to control the Id. 354-56,222 at S.E.2d at 401-02. parcel
Here, description generally in the Offer identified the the map designation a tax and as the Lessie Bradsher Estate through plaintiffs property. Although the tract identified located behind
WOLFE VILLINES App. twenty-five acres, description encompassed the further more than - de- + or 25 acres would be specified that the exact amount of provided by survey property. Thus, of as the contract a the termined precise property be the to means identification of an extrinsic latently, patently, description was rather than sold, we find the as a not the statute of frauds ambiguous and therefore did violate of law. matter description requires of latently ambiguous
A admission extrinsic ques- the land in explain or refute the identification of evidence potential material fact which must be tion, and thus creates issue of a matter of law that before the trial court can conclude as determined House, met. at statute of frauds has been the surveyor showed the S.E.2d at 674. Hamlett’s affidavit portion parcel buildings the after Bowes to discard directed upon it, further move the northern were discovered and directed to production in the property. line of the These directions resulted potential surveys conveyed under con- to be the three 727-28, Byrd Freeman, Unlike in tract. produced
715, 718-19 two results were (1960), where different parties mutually on the agreed the evidence showed the one of but surveys, here, remained as to which of a material issue fact descriptions, any, intention of the proposed if reflected the true purpose of the statute of frauds is parties. Although we note that testimony” perjured against supported claims “guard fraudulent obligation than allow to evade an based on rather “defendants admittedly House, N.C. at fairly made[,]” and contract evidence must be adduced S.E.2d at sufficient extrinsic 311 identify conveyed by parcel and of land intended to be description be ambiguity in the for it to remove latent contractual as to there exists an issue of material fact both enforceable. As discovery conveyed, as precise a result ambiguity latent buildings, as to the contract is void for whether description, we the trial court’s of sum- in the therefore reverse mary judgment.
[2] dissent
contends that
although
the evidence
presented to the
*5
surveyor
possible
three
had determined
trial court indicated the
description, the
general
of
be drawn from the
land
tracts
land could
equity
order
properly
in
to reform the contract and
trial court
acted
convey
parcels.
three
Such actions
the smallest of the
defendants to
summary judgment
adjudi
by
stage оf
equity
the trial court at the
in
fact
In
permissible when
of material
exist.
are not
issues
cation
Property Co.,
Dettor v. BHI
(1989),
S.E.2d 851
our
Supreme Court considered
disputed
another
land contract.
In
Dettor, a contract for the sale of land
description
included a
“
property to be sold as
12 acres and highlighted
yellow
on
‘±
”
“
Exhibit A attached hereto’ and further that
property shall be
‘[t]he
surveyed by a North
Registered Surveyor
Carolina
expense
at the
of
Property
the Sellers ....
is to
approximately
have
12 acres as shown
”
on
A”
“Exhibit
attached
519-20,
hereto.’
Id. at
covery of improvements unknown property, on the resulting in a ambiguity latent description. the land improperly The triаl court concluded that no material yet issue of fact existed, selected one of surveys presented three to the remedy. court as the As a material existed, fact we find the trial court erred in reforming the contract at the judgment stage.
III. [3] Defendants next contend there was a issue of material fact as to whether the Offer was plaintiff’s terminated due to failure the Offer’srequirements, including property, prior closing to the date. We disagree. appealed 2. We note that the order in Dettor was also entitled Partial Summary Judgment, Supreme but was considered both this Court and our Court. *6 IN COURT THE OF APPEALS 489 App. (2006)] N.C. 483
[169 Taylor Bailey, App. 290, (1977), In N.C. 918 only noted Court that when the reference to time in the contract was proposed date, closing survey as to and the included a conditions opinion property, and title of the time was not essence to the agree- upheld finding by and ment the that the failure settle the stated did not Taylor, 293-94, date vitiate the contract. See at Taylor, surveyor timely at fashion, 920. In was in a hired problem delayed but a with the title was closing. discovered which Id. at at S.E.2d 920. Court affirmed the order of however, of the contract as there was no evidence “ ‘plaintiff dеlayed: ready, tarried . . . willing or and . . stood and ” complete able to and the terms conditions of said Id. at contract[.]’ 294-95,237 S.E.2d at (citation omitted). Offer, Taylor, the like in stated should closing occur “on or 1-31-2002,” survey paid
before but by included the condition of a plaintiff. contract, As time was not the essence in the the failure to survey complete required January the and close 2002 does not question vitiate contract. The rather is one of the reasonableness complete time Jones, of the the contract. See Fletcher “What ‘reasonable is a time’ in delivery generаlly question must be made a mixed of law and and, fact, therefore, jury, simple but for the when the facts are and admitted, only and drawn, one inference can it is a be Kimball, law.” Colt v. 409 (1925). 129 S.E. presented Evidence in the affidavits of Bowes and Hamlett show surveyor timely that the in a was hired fashion in December 2001 agent parties, problem survey of both arose with the when presence parame- of a was building given discovered within the specified ters, and that as only, the Offer the contract was for land surveyor resurvey agent prop- was instructed to return to erty building. Further, without the Hamlett states his corrected affi- on 17 delayed davit November 2003 that he was from returning to survey complete the until March 2002 of the changes, as a result survey by told at that was time not defendants. As plaintiff “delayed completion is no there evidence that or tarried” in contract, disputed fact, prop- or other material the trial court erly delay completion found the of a few weeks of law. not unreasonable as a matter
As we find that a as material issue fact exists to the land description, we therefore reverse the trial of sum- court’s mary judgment. IN THE OF APPEALS COURT v. VILLINES
WOLFE Reversed.
Judge LEVINSONconcurs. separate opinion. in a
Judge TYSONdissents TYSON,Judge dissenting. opinion partial of majority’s grаnt the trial court’s reverses
summary
plaintiff’s
of
favor and holds
issues
judgment
concerning: (1)
the Offer is void for latent
material fact exist
whether
property description; and
which
ambiguities with the
interlocutory
conveyed.
appeal is
and defendants
be
This
should
Appellate
Rules
comply
with the North Carolina
of
failed
respectfully
I
should be dismissed.
dissent.
Procedure and
Interlocutory Appeals
I.
“
during
pendency of
Interlocutory appeals are those
‘made
case,
leave it for
dispose
action
do not
but instead
an
by the
to settle and determine the entire
further action
trial court
” Sharpe
159, 161,
S.E.2d
controversy.’
Worland,
v.
351 N.C.
522
Carriker,
71, 73,
577,
v.
350 N.C.
(1999) (quoting
578
Carriker
Durham,
357,
N.C.
2,
(1999));
Veazey
4
231
511 S.E.2d
362-63,
accord
377, 381-82,reh’g denied,
744,
232 N.C.
It is the December Summary interlocutory appeal is because it was “Partial defendants summary judg- partially plaintiff’s motion for Judgment” granted summary ment, judgment, and did not denied defendants’ motion Carriker, N.C. аt 511 S.E.2d at dispose of the entire case. See 350 jurisdiction specifically that it “shall retain 4. The trial court ordered any, appro- what if . . . purpose determining damages, for the [are] Personnel, 207, 240 priate Inc., ...” Waters v. 294 N.C. S.E.2d interlocutory (an when issues remain and 343 order is adjudication issued). Here, is require before final decree further trigger preemptive review there is no risk of inconsistent verdicts to N.C., Inc., Resources, Inc. v. Mountaire Farms this Court. CBP App. 169, 172, (1999) (“the S.E.2d issue of lia 134 N.C. only bility determined, remaining issue is that of has been [and] danger verdicts”); of inconsistent Schuch v. damages and there no Hoke, (1986) (“an оrder partial judgment on the issue of lia granting motion for [a] interlocutory bility, reserving damages, for trial the issue of an [is] Industries, subject appeal”) (citing not to immediate Inc. v. order 486, 492, Co., (1979)). Insurance Interlocutory Judgments A. Review of Generally, right there is no of immediate from an inter locutory Co., judgment. Hotels v. Piedmont Natural Gas Travco interlocutory may An order *8 only appeal be considered on where either: certification 1A-1,Rule § trial court for immediate review under N.C. Gen. Stat. appellant is 54(b) (2003); right” or “a substantial of the affected. Services, 380, 381, 493 S.E.2d Tinch v. VideoIndustrial 347 (1997) (citing Bailey Gooding, 427 301 N.C. 270 S.E.2d (1980)); 1-277(a) (2003); N.C. Gen. Stаt. N.C. Gen. Stat. § certify partial its sum 7A-27(d) (2003). the trial court did not § mary 54(b) Rule and defend judgment “for immediate review” under will be lost absent right” ants have failed to show “a substantial Slough, review. Watts v. 163 N.C. immediate appeal due to the trial (2004) (interlocutory dismissed 54(b) appellant’s under Rule and the fail certifying court not its order adversely right a substantial that would be affected with ure to assert review). immediate out Appellate
1. Rules of Procedure Appellate 28(b)(4) Rule of the North Carolina Rules of Procedure requires appellant’s grounds brief to include “statement appellate (2004); P. see Chicora 28(b)(4) for reviеw.” N.C.R. App. 101, 105-06, Country Club, Erwin, Inc. v. 128 N.C. Town of interlocutory, appeal If the “state (1997). 493 S.E.2d argument facts and grounds” ment of the support appellate must contain sufficient challenged judg grounds review on the that the right, or was certified the trial ment either affects a substantial Raleigh appellate Jeffreys v. Oaks Joint court for immediate review. Venture, App. 377, (1994). It is the duty provide appel to warrant appellant’s grounds this Court the review. Id. late OF APPEALS IN THE COURT grounds a “statement of the neither included interlocutory nature of their
appellate review” nor addressed any sub- arguments assert in their appeal. Furthеr, defendants do not adversely if does not affected this Court that will be rights stantial immediately order. review the trial court’s mandatory and failure to Appellate Procedure are
“Rules of
appeal.”
Wilson,
State v.
grounds
them is
for dismissal
observe
denied, - N.C.
(1982), cert.
App. 818,
II. Rule 2 interlocutory majority’s appeal is and that opinion agrees comply apрellate Yet, rules. it invokes failed to with the defendants pur- Rules of Procedure to Rule of the North Carolina Rule 2 states: portedly review the merits of defendants’ claims. expedite prevent injustice party, to a or to decision To manifest appellate may, public interest, either court of the division in the suspend except expressly provided rules, these as otherwise provisions any vary requirements or of these rules or upon upon application party or pending a case before it may with initiative, proceedings order in accordance *9 its own its directions. 2
N.C.R. P. Stеingress Steingress Supreme Court stated Our power appellate 2 courts to con “Rule relates to the residual of our importance sider, exceptional circumstances, significant issues of prevent injustice appears which manifest public interest, in the or to 66, only 64, 511 S.E.2d to the Court and in such instances." 350 Lynch, supplied) (citing Blumenthal v. 298, (1999) (emphasis 299-300 repeat 358, (1986)). This Court has 315 N.C. 340 S.E.2d 362 “ upon 2 edly Appellate no basis under Rule held that ‘there is Appellate Rules ....’” plaintiff’s waive violations of we should 224, Heavner, App. 218, 222, 595 S.E.2d Holland v. 164 N.C. App. 338, 340, Sessoms, 76 N.C. (quoting Sessoms v. (2004) 511, (1985)).
My any “exceptional review of the entire record fails to disclose circumstances,” “significant issues,” injustice” or “manifest to war- suspension precedents rant Rules. Our do not allow appeal. use of Rule 2 to reach I the merits this vote to dismiss. Property Description III. disagree majority’s
I also with the holding that since the sur- vey completed genuine was never issues fact exist: con- parcels cerning convey; which of the intended to potentially latently whether ambiguous the Offer is void for the property description. Early, Supreme
In Kidd v. prop- our Court determined that a erty description survey that references a future satisfies the Statute of Frauds. 289 N.C. (1976); S.E.2d 392 see also N.C. Gen. Stat. 22-2 (2003). property description § included in the Offer is latently ambiguous, parol requiring specify pre- evidence to its McElroy, cise location. See Bradshaw v. 62 N.C. (1983) (citing Coe, Lane v. (1964)). surveyor complete survey
Defendants failed to allow the to ambiguity property description remove the latent and make the defi- Kidd, nite. at S.E.2d at 402. Hamlett’s divulged buildings existence of located on the to be con- veyed during Upon discovery reporting initial field work. Bowes, Broker improvements Hamlett was instructed to remove the conveyed boundary from the аnd move the northern line. preliminary survey possible The result including was a three tracts of land, ranging wrongly from 15.9 to 20.8 acres. Defendants refused survey, forcing Hamlett access to the the final plaintiff instigate performance, this action and seek an equitable remedy. pleadings, exhibits, affidavits, law,
Based on the memoranda of testimony, admitted and oral trial arguments, the court ruled any there is no issue as to material facts and that the specific performance Plaintiff is entitled to of the December 2001 Offer to Purchase and Contract entered into between the *10 Plaintiff and the Defеndants. It is further that determined as a equity, matter the contract shall be to reflect that reformed conveyed pursuant to the terms of the contract is OF APPEALS IN THE COURT v. VILLINES
WOLFE outparcel 40,000 square foot excluding the 15.9 acres [+-] building .... and out containing the house Equity, in its court, sitting as a Court of The trial supplied). (Emphasis contract and evidence, reformed the light of all the and in discretion possible convey of the three the smallest ordered defendants conveyance of despite calling for acres, the Offer parcels, 15.9 pro- defendants to It further ordered twenty-five acres, more or less. 15.9 рroperty to finalize access to the vide Hamlett acre tract. material fact that potential issues of apparent that the
It is result from reversing trial court’s order majority’s opinion cites acknowledges majority’s opinion The breach of the Offer. defendants’ against fraudulent designed guard of frauds was statute “[t]he to be used testimony; it was not meant supported perjured claims fairly and on a contract obligation an based to evade defendants App. 636, 641, 311 S.E.2d Stokes, 66 N.C. admittedly House v. made.” However, holding its allows omitted). 671, (1984) (citation by approving their unfairly delay plаintiff to further defendants closing through matter prolonging the of this the Offer and breach of “ may specific per equity decree court of improper actions. their ‘[A] defendant to fraud to allow the formance, when it would be a virtual him time secure to and at the same interpose the statute as defense ” performance.’ Ebert what has been done the benefit of self omitted), cert. 48, 301, (quotation Disher, (1939). S.E.2d 716 denied, 216 N.C. my does not review of the record do not assert and by sitting as a court of discretion trial court abused its
indicate the
specific performance.
contract,
ordering
reforming the
equity,
(this
Harris,
App. 305,
See Harris v.
remedy
equitable
is under the abuse
court’s
review of a trial
Court’s
appeal dismissed, 302 N.C.
standard),
of discretion
BHI Property
as author
Co.
majority’s opinion cites Dettor
preclude a trial court’s
material fact
ity
genuine issues of
to hold that
mined potential “$2200.00Per Ac.” The issues of fact the to the first field” at possibility majority’s opinion not from the cites do result party bargain as was appealing receiving not the benefit receiving purchase the full the Offer. Defendants are intended addition, they conveying plaintiff over price of the Offer. In are acreage required the terms of the Offer. nine аcres less than the defendants, plaintiff. order benefits not The trial court’s present here, as materiality issues of fact in Dettor is not they for, and more. receiving everything contracted defendants are complained appeal and has not about (the purchaser) Plaintiff did not convey nine acres less than trial court’s decision to to him over called for. the Offer majority’s remand, defendants stand to holding,
Under the on if finder of fact deter- more than the 15.9 acre tract the future lose conveyed by be larger intended a mines APPEALS IN THE COURT OF appeal are pursuing motives in addition, In defendants’ Offer. outstanding third- another questionable as record evidence shows pending, purchase remaining acreage party Offer to defendants’ upon of this matter. contingent the outcome *12 Closing
IV. Time for properly trial court found majority’s opinion also states the is also for the Offer. That discussion that time was not of the essence interlocutory and defendants failed to unnecessary appeal as satisfy appellate procedure. assignment This of error is the rules of dismissed. properly before this Court and should be also not
V. Conclusion discretion, equity and in its cоurt, sitting The trial as a court of the Offer. properly ordered reformation and improper and refusal to allow the sur- Defendants’ breach Offer any veyor potential issues of fact. This his work created delay wrongful conduct to or Court should not allow defendants’ obligations. avoid their contractual interlocutory (1) its na-
I vote to dismiss this due to: certification; ture; court the absence of a substantial (2) no trial by the North Carolina Rules right; defendants’ failure to abide Appellate Also, precedents our do not allow Rule to Procedure. comply the North be used to excuse defendants’ failure to with R.R., Rules of Procedure. See Smith v. Carolina 729, 749-50, (1894) (warning that, “Looseness of lan- 19 S.E. judicial opinions, silently acquiesced in guage and dicta in either or insidiously repetition, exert their perpetuated inadvertent often law, they application or confusing influence until result crystallized authority into a kind of which the themselves become courts, principle, reference to are constrained to fol- without true respectfully I dissent. low.”). notes his brief that “it is . . . that is, fact, partial summary the order not a judgment because no fur- parties (Emphasis Despite ther or claims are unresolved.” omitted.) partial summary judgment, appears its title of the order to not be interlocutory, court, itas resolves all claims raised to the and review premature. of the matter would fragmentary therefore be neither nor question remains, however, The dissent contends that a as to whether the order final interlocutory, or as the trial court did not certify appeal pursuant juris- this 54(b) to N.C.R.Civ.R and did retain purpose. therefore, judicial diction for limited We in the interest of prevent injustice economy, and to manifest to both as a com- plete remedy by court, pur- and finаl has been ordered the trial elect suant to Rule 2 of the North Carolina Rules of Procedure to plaintiff’s appeal petition treat as a for a writ of certiorari and petition. App. 2, Kimzay Winston-Salem, P. N.C.R. Inc. v. Jester, App. 77, 79, (1991). II. finding Defendants contend that the trial court erred in there was
Notes
[1] legal description no issue of material fact as to whether the in the Offer was insufficient to meet the statute of agree. We frauds.1 provide grounds appellate review, 1. fail a statement of the as by required App. appealed 28(b)(4), N.C.R. P. as to whether this matter constitutes a proрerly subjects judgment final which is before this Court. Violation of this rule Wilson, appeal dismissal. See State N.C. defendants’ supra, However, appropriate (1982). we as noted deem it consider pursuant on its merits P. 2. to N.C.R. OF APPEALS IN THE COURT VTLLTNES WOLFE Summary judg- appropriate standard of review. first note the We depositions, answers to pleadings, properly granted “if the ment is file, affidavits, if together with the and admissions on interrogatories, any material fact and genuine issue as to any, that there is no show of law.” N.C. Gen. any to a as a matter party is entitled 1A-1, 56(c) (2003). Stat. Rule § convey land requires that contracts to statute of frauds Our contract, memorandum or note unless said or some “shall be void by party charged there- put writing signed thereof, be lawfully person by him thereto authorized.” with, some other or Supreme 22-2 Court of North Carolina (2003). Gen. Stat. § has held that: expressly convey land, therefore, must contain A valid contract to necessary implication agree- features of an all the essential or description land, certain in sell, of which is a ment to one capable rendered certain reference to an being itself or designated therein. extrinsic source Early, Kidd v. land violates the statute of frauds agreement An for the sale of patently ambiguous, is, if “it leaves a matter of law if it is as uncertainty land, subject contract, in a state of absolute